Frequently Asked Questions About Employment Eligibility

by the U.S. Citizenship and Immigration Services (USCIS)

Do citizens and nationals of the U. S. need to prove, to their employers, they are eligible to work?

Yes. While citizens and nationals of the U.S. are automatically eligible for employment, they too must present proof of employment eligibility and identity and complete an Employment Eligibility Verification form (Form I-9). Citizens of the U.S. include persons born in Puerto Rico, Guam, the U.S. Virgin Islands, and the Northern Mariana Islands. Nationals of the U.S. include persons born in American Samoa, including Swains Island.

Do I need to complete a Form I-9 for everyone who applies for a job with my company?

No. You need to complete Form I-9 only for people you actually hire. For purposes of the I-9 rules, a person is "hired" when he or she begins to work for you for wages or other compensation.

I understand that I must complete a Form I-9 for anyone I hire to perform labor or services in return for wages or other remuneration. What is "remuneration"?

Remuneration is anything of value given in exchange for labor or services rendered by an employee, including food and lodging.

Can I fire an employee who fails to produce the required document(s) within three (3) business days?

Yes. You can terminate an employee who fails to produce the required document(s), or a receipt for a replacement document(s) (in the case of lost, stolen or destroyed documents), within three (3) business days of the date employment begins. However, you must apply these practices uniformly to all employees. If an employee has presented a receipt for a replacement document(s), he or she must produce the actual document(s) within 90 days of the date employment begins.

What happens if I properly complete a Form I-9 and the ICE discovers that my employee is not actually authorized to work?

You cannot be charged with a verification violation; however, you cannot knowingly continue to employ this individual. You will have a good faith defense against the imposition of employer sanctions penalties for knowingly hiring an unauthorized alien unless the government can prove you had actual knowledge of the unauthorized status of the employee.

What is my responsibility concerning the authenticity of document(s) presented to me?

You must examine the document(s) and, if they reasonably appear on their face to be genuine and to relate to the person presenting them, you must accept them. To do otherwise could be an unfair immigration-related employment practice. If a document does not reasonably appear on its face to be genuine and to relate to the person presenting it, you must not accept it. You may contact your local ICE office for assistance. To get the address and telephone number of the ICE office nearest you, please click the ICE district office directory.

May I accept a photocopy of a document presented by an employee?

No. Employees must present original documents. The only exception is an employee may present a certified copy of a birth certificate. For more detailed information on Employment Eligibility Verification, see About Form I-9.

Employer Information

http://uscis.gov/graphics/howdoi/EEV.htm

About Form I-9, Employment Eligibility Verification

PURPOSE

The Immigration Reform and Control Act made all U.S. employers responsible to verify the employment eligibility and identity of all employees hired to work in the United States after November 6, 1986. To implement the law, employers are required to complete Employment Eligibility Verification forms (Form I-9) for all employees, including U.S. citizens.

FOR WHO MUST EMPLOYERS COMPLETE FORM I-9?

Every U.S. employer must have a Form I-9 in its files for each new employee, unless:

• the employee was hired before November 7, 1986, and has been continuously employed by the same employer.
• Form I-9 need not be completed for those individuals:
• providing domestic services in a private household that are sporadic, irregular, or intermittent;
• providing services for the employer as an independent contractor (i.e. carry on independent business, contract to do a piece of work according to their own means and methods and are subject to control only as to results for whom the employer does not set work hours or provide necessary tools to do the job, or whom the employer does not have authority to hire and fire); and
• providing services for the employer, under a contract, subcontract, or exchange entered into after November 6, 1986. (In such cases, the contractor is the employer for I-9 purposes; for example, a temporary employment agency.)

CURRENT VERSION OF FORM I-9

The current version of the Form I-9 and the Handbook for Employers are dated 11/21/91. Both the Form I-9 and Handbook are undergoing revisions to reflect subsequent changes in U.S. immigration law and procedure. A revised Form I-9 may become available in 2005. However, a release date has not been determined. USCIS will conduct outreach and make education materials available to employers when a revised Form I-9 is available. The proposed changes and Form I-9 published in February 1998 are not currently in effect. Interim changes made on September 30, 1997 are currently in effect.

WHAT SHOULD BE DONE WITH FORMS I-9 AFTER THEY ARE COMPLETED?

Unlike tax forms, for example, I-9 forms are not filed with the U.S. government. The requirement is for employers to maintain I-9 records in its own files for 3 years after the date of hire or 1 year after the date the employee's employment is terminated, whichever is later. This means that Form I-9 need to be retained for all current employees, as well as terminated employees whose records remain within the retention period. Form I-9 records may be stored at the worksite to which they relate or at a company headquarters (or other) location, but the storage choice must make it possible for the documents to be transmitted to the worksite within 3 days of an official request for production of the documents for inspection. Note: U.S. immigration law does not prescribe or proscribe storage of a private employers I-9 records in employee personnel files. As a practical matter, however, particularly if a large number of employees are involved, it may be difficult to extract records from individual personnel files in time to meet a 3-day deadline for production of I-9 records for official inspection.

DISCRIMINATION

The law protects certain individuals from unfair immigration-related employment practices of a U.S. employer, including refusal to employ based on a future expiration date of a current employment authorization document. The U.S. government entity charged with oversight of the laws protecting against unfair immigration-related employment practices is the Office of Special Counsel for Immigration Related Unfair Employment Practices, which is part of the Civil Rights Division of the U.S. Department of Justice.

AVAILABILITY OF FORMS I-9 IN FOREIGN LANGUAGES

The Form I-9 and most other INS forms are published in English only.

EMPLOYEES RESPONSIBILITY REGARDING FORM I-9

A new employee must complete Section 1 of a Form I-9 no later than close of business on his/her first day of work. The employees signature holds him/her responsible for the accuracy of the information provided. The employer is responsible for ensuring that the employee completes Section 1 in full. No documentation from the employee is required to substantiate Section 1 information provided by the employee.

EMPLOYERS RESPONSIBILITY REGARDING FORM I-9

The employer is responsible ensuring completion of the entire form. No later than close of business on the employees third day of employment services, the employer must complete section 2 of the Form I-9. The employer must review documentation presented by the employee and record document information of the form. Proper documentation establishes both that the employee is authorized to work in the U.S. and that the employee who presents the employment authorization document is the person to whom it was issued. The employer should supply to the employee the official list of acceptable documents for establishing identity and work eligibility. The employer may accept any List A document, establishing both identity and work eligibility, or combination of a List B document (establishing identity) and List C document (establishing work eligibility), that the employee chooses from the list to present (the documentation presented is not required to substantiate information provided in Section 1). The employer must examine the document(s) and accept them if they reasonably appear to be genuine and to relate to the employee who presents them. Requesting more or different documentation than the minimum necessary to meet this requirement may constitute an unfair immigration-related employment practice. If the documentation presented by an employee does not reasonably appear to be genuine or relate to the employee who presents them, employers must refuse acceptance and ask for other documentation from the list of acceptable documents that meets the requirements. An employer should not continue to employ an employee who cannot present documentation that meets the requirements.

QUESTIONS ABOUT GENUINENESS OF DOCUMENTS

Employers are not required to be document experts. In reviewing the genuineness of the documents presented by employees, employers are held to a reasonableness standard. Since no employer which is not participating in one of the employment verification pilots has access to receive confirmation of information contained in a document presented by an employee to demonstrate employment eligibility, it may happen that an employer will accept a document that is not in fact genuine or is genuine but does not belong to the person who presented it. Such an employer will not be held responsible if the document reasonably appeared to be genuine or to relate to the person presenting it. An employer who receives a document that appears not to be genuine may request assistance from the nearest Immigration field office or contact the Office of Business Liaison.

DISCOVERING UNAUTHORIZED EMPLOYEES

It occasionally happens that an employer learns that an employee whose documentation appeared to be in order for Form I-9 purposes is not actually authorized to work. In such case, the employer should question the employee and provide another opportunity for review of proper Form I-9 documentation. If the employee is unable under such circumstances to provide satisfactory documentation, employment should be discontinued (alien employees who question the employers determination may be referred to an Immigration field office for assistance).

DISCOVERING FALSE DOCUMENTATION

False documentation includes documents that are counterfeit or those that belong to someone other than the employee who presented them. It occasionally happens that an employee who initially presented false documentation to gain employment subsequently obtains proper work authorization and presents documentation of this work authorization. In such a case, U.S. immigration law does not require the employer to terminate the employees services. However, an employers personnel policies regarding provision of false information to the employer may apply. The employer should correct the relevant information on the Form I-9.

PHOTOCOPIES OF DOCUMENTS

There are two separate and unrelated photocopy issues in the employment eligibility verification process. First is whether an employer may accept photocopies of identity or employment eligibility documents to fulfill I-9 requirements. The answer is that only original documents (not necessarily the first document of its kind ever issued to the employee, but an actual document issued by the issuing authority) are satisfactory, with the single exception of a certified photocopy of a birth certificate. Second is whether the employer may or must attach photocopies of documentation submitted to satisfy Form I-9 requirements to the employees Form I-9. The answer is that this is permissible, but not required. Where this practice is undertaken by an employer, it must be consistently applied to every employee, without regard to citizenship or national origin.

GREEN CARDS

The terms Resident Alien Card, Permanent Resident Card, Alien Registration Receipt Card, and Form I-551 all refer to documentation issued to an alien who has been granted permanent residence in the U.S.. Once granted, this status is permanent. However, the document that an alien carries as proof of this status may expire. Starting with the pink version of the Resident Alien Card (the white version does not bear an expiration date), and including the new technology Permanent Resident Cards, these documents are valid for either two years (conditional residents) or ten years (permanent residents). When these cards expire, the alien cardholders must obtain new cards. An expired card cannot be used to satisfy Form I-9 requirements for new employment. Expiration dates do not affect current employment, since employers are neither required nor permitted to re-verify the employment authorization of aliens who have presented one of these cards to satisfy I-9 requirements (this is true for conditional residents as well as permanent residents). Note: Even if unexpired, green cards must appear genuine and establish identity of the cardholder.

SOCIAL SECURITY CARD ISSUES

The Social Security Administration (SSA) currently issues SSA numbers and cards to aliens only if they can present documentation of current employment authorization in the U.S. Aliens such as lawful permanent residents, refugees, and asylees are issued unrestricted SSA cards that are undistinguishable from those issued to U.S. citizens.

Note on restricted SSA and other cards:

SSA Valid only with INS (or DHS) Authorization card issued to aliens who present proof of temporary work authorization; these cards do not satisfy the Form I-9 requirements.

SSA Not Valid for Employment card issued to aliens who have a valid non-work reason for needing a social security number (e.g., federal benefits, State public assistance benefits), but are not authorized to work in the U.S.

Internal Revenue Service (IRS) Individual Taxpayer Identification Numbers (ITINs) issued to aliens dealing with tax issues (e.g., reporting unearned income such as savings account interest, investment income, royalties, scholarships, etc.). An Individual Taxpayer Identification Number card is NOT employment eligibility verification. Aliens who satisfy I-9 requirements have been known to present a restricted SSA card for payroll administration purposes (consistent with advice from SSA and IRS). In cases like this, the employer needs to encourage the individual to report the change in status to SSA immediately.

RETENTION OF FORMS I-9

All of an employers current employees (unless exempt) must have Forms I-9 on file. A retention date can only be determined at the time an employee is terminated. It is determined by calculating and comparing two dates. To calculate date A, the employer should add three years to the hire date. To calculate date B, the employer should add one year to the termination date. Whichever of the two dates is later in time is the date until which that employees form I-9 must remain in the employers employment eligibility verification files.

OFFICIAL INSPECTION OF I-9 RECORDS

Upon request, all Forms I-9 subject to the retention requirement must be made available in their original form or on microfilm or microfiche to an authorized official of the Bureau of Immigration and Customs Enforcement, Department of Labor, and/or the Justice Departments Office of Special Counsel for Unfair Immigration-Related Employment Practices. The official will give employers at least 3 days advance notice before the inspection. Original documents (as opposed to photocopies) may be requested.

FORM I-9 REQUIREMENTS OF NEW OWNERS OF EXISTING BUSINESSES

In a case where a new owner of a business is a successor in interest, having acquired an existing business, the new employer may keep the acquired employers I-9 records rather than complete new Forms I-9 on employees who were also employees of the acquired employer. However, since the new employer would be responsible for any errors, omissions or deficiencies in the acquired records, it may choose to protect itself by having a new Form I-9 completed for each acquired non-exempt employee and attached to that employees original Form I-9.

REMOTE HIRES

It is not unusual for a U.S. employer to hire a new employee who doesnt physically come to that employers offices to complete paperwork. In such cases, employers may designate agents to carry out their I-9 responsibilities. Agents may include notaries public, accountant, attorneys, personnel officers, foremen, etc. An employer should choose an agent cautiously, since it will be held responsible for the actions of that agent. Note: Employers should not carry out I-9 responsibilities by means of documents faxed by a new employee or through identifying numbers appearing on acceptable documents. The employer must review original documents. Likewise, Forms I-9 should not be mailed to a new employee to complete Section 2 himself or herself.

SERVICE PROVIDERS

Some business entities contract with professional employer organizations (PEOs) to handle the personnel and benefits aspects of the business. This may include completion and retention of Forms I-9. Where the business entity and the PEO are "co employers," one Form I-9 need be completed between the co-employers for each employee who was simultaneously hired by the co-employers. A business entity and PEO will be deemed a "co-employer" if, among other things, an employer/employee relationship is said to exist between the business entity and PEO on the one hand, and the individual on the other, even though the employee is only performing one set of services for both co-employers. Therefore, the authority to hire or terminate employment would have to be in the hands of both the business entity and the PEO. Since both entities are employing the individual, however, both entities remain equally responsible for meeting the Form I-9 requirements and equally liable for any failures to meet those requirements. Accordingly, the employer is fully responsible for errors, omissions, and deficiencies in the PEO's processing.

REMEMBER

For more information, please contact the Office of Business Liaison (OBL). The OBL has informational bulletins regarding the I-9 process, plus the Handbook for Employers. In addition OBL can answer questions via email, fax and phone.

Source: http://uscis.gov/graphics/howdoi/faqeev.htm